Decision No. 521-AT-A-1999

APPLICATION by Uwe Harders pursuant to subsections 172(1) and (3) of the Canada Transportation Act, S.C., 1996, c. 10 concerning the refusal by British Airways to carry his guide dog in the aircraft passenger cabin between Toronto, Ontario, Canada and New York, United States of America.

File No. U3570/98-34

APPLICATION

On January 4, 1999, Uwe Harders filed an application with the Canadian Transportation Agency (hereinafter the Agency) with respect to the matter set out in the title. British Airways filed its answer to the application on May 21, 1999 and Mr. Harders provided his reply on June 17, 1999.

Subsection 29(1) of the Canada Transportation Act (hereinafter the CTA) states, in part, that the Agency shall make its decision in any proceedings before it no later than one hundred and twenty days after the originating documents are received, unless the parties agree to an extension. On March 29 and 31, 1999, respectively, British Airways and M. Harders agreed to an extension of the deadline.

ISSUE

The issue to be addressed is whether the refusal by British Airways to carry Mr. Harders' guide dog in the aircraft passenger cabin constituted an undue obstacle to his mobility and, if so, what corrective measures should be taken.

FACTS

Mr. Harders is blind and uses a guide dog to facilitate his travel.

Mr. Harders filed a complaint with the Canadian Human Rights Commission on October 1, 1998 alleging that British Airways discriminated against him when it cancelled his flight after learning that he would be accompanied by his seeing eye dog. The Canadian Human Rights Commission referred the matter to the Agency on November 16, 1998 requesting that the Agency investigate the complaint.

On August 18,1998, Mr. Harders booked through his travel agent, Link with Home Travel Inc., transportation on British Airways for himself and Ms. Elaine Davidson from Toronto to New York's John F. Kennedy International Airport. Mr. Harders and Ms. Davidson were scheduled to depart on October 6, 1998 and to return on October 13, 1998. The Toronto-New York segment was an extension of the British Airways flight operated between Birmingham and New York. Non-refundable tickets were issued on the same day at a reduced fare.

On August 19, 1998, Mr. Harders' travel agent informed British Airways through a note sent by computer that Mr. Harders was blind and would be accompanied by his seeing-eye dog.

On September 28, 1998, Mr. Harders' travel agent contacted British Airways reservation office and requested bulkhead seating with extra space to accommodate Mr. Harders' guide dog. In response to the request, British Airways's reservation agent informed the travel agent that guide dogs are not allowed in the aircraft passenger cabin on British Airways flights and that it would be necessary for Mr. Harders' guide dog to travel in the hold.

Given the concerns raised by Mr. Harders on the importance to travel with his guide dog in the aircraft passenger cabin, the travel agent called British Airways on September 29, 1998 and requested further verification on the information submitted. She also requested to be provided with a copy of British Airways' regulations. This matter was referred to British Airways Customer Service Unit which confirmed to the travel agent that British Airways was unable to allow Mr. Harders' guide dog to travel in the aircraft passenger cabin.

Due to its inability to meet the passenger's needs, British Airways Customer Service Unit authorized Mr. Harders' travel agent to provide the passengers with a total refund of all monies paid for the trip and to rebook the two passengers on Canadian Airlines International Ltd (hereinafter Canadi*n) at no additional charge. Furthermore, as Canadi*n operates its service from LaGuardia Airport, the travel agent was also authorized to reimburse the passengers for the transfer arrangements between LaGuardia and John F. Kennedy airports.

British Airways made the necessary arrangements on September 30, 1998 for the passengers to travel with Canadi*n and received confirmation that Mr. Harders' guide dog would travel in the aircraft passenger cabin.

POSITIONS OF THE PARTIES

Mr. Harders submits that he found the incident with British Airways humiliating. He explains that, although he experienced similar situations in the past, in all cases, regardless of the excuses provided, the law protected him from discrimination. Following the incident he experienced with British Airways, Mr. Harders expects an apology as well as a full reimbursement of his tickets.

British Airways submits that, at the present time, seeing eye dogs are allowed to travel in the passenger cabin on flights wholly within the United Kingdom (including Jersey); on German internal services; and on flights between the United Kingdom and the Republic of Ireland. British Airways provided as part of its response, an excerpt from its procedural manual, which outlines its policy on the carriage of guide dogs. British Airways submits that this document provides clear instructions to its customer service staff that, on all other flights operated by British Airways, it is necessary for seeing-eye dogs to travel in the hold since no animals are permitted in the passenger cabin. British Airways explains that these guidelines have been established because of the very strict quarantine restrictions implemented by the United Kingdom government.

British Airways explains that these restrictions apply to all international services British Airways operates and that the Toronto/New York segment was an extension of its international service Birmingham/New York. According to British Airways, since the aircraft and crew operated that route as an international service, its staff applied the correct procedure to ensure compliance with the quarantine law. British Airways assures that as soon as its staff became aware of the special needs of the passenger, every effort was made to provide suitable alternative travel arrangements to Mr. Harders.

British Airways submits that, after the traffic rights on the Toronto/New York route were awarded, the requirements of the Canada Transportation Act were not brought to the attention of British Airways' London Head Office. British Airways explains that, although it no longer operates a flight between Toronto and New York or any other flight involving a United States of America destination, should such a route be operated in future, the issue of accepting guide dogs in the passenger cabin on a Canada/United States of America route will be reviewed to determine whether it complies with the United Kingdom animal quarantine restrictions. British Airways assures that it intends to comply with local conditions and directives from the Agency regarding the carriage of passengers. British Airways also expresses its regrets for the inconvenience experienced by Mr. Harders.

ANALYSIS AND FINDINGS

In making its findings the Agency has considered all the evidence submitted by the parties during the pleadings.

The Agency is of the opinion that the right of persons with disabilities to be accompanied by their guide dogs in the passenger aircraft cabin is a fundamental issue.

The Agency recognizes the important role that guide dogs play in helping persons with disabilities to be more independent and supports the principle of the acceptance of guide dogs in the aircraft passenger cabin. This principle is found in the Agency's regulations applicable to Canadian air carriers in domestic travel. The Agency also notes that it is a common practice for air carriers operating international services to allow persons with disabilities to be accompanied by their guide dogs in the aircraft passenger cabin to facilitate their travel.

The International Civil Aviation Organization (hereinafter the ICAO) has considered the issue of acceptance of guide dogs. The recently amended Annex 9 contains a recommended practice (8.36), entitled Facilitation of the transport of passengers requiring special assistance (Access to air services) which provides that:

Wheelchairs, special apparatus and equipment required by persons with disabilities should be carried free of charge in the cabin where, in the view of the airline, space and safety requirements permit or should be designated as priority baggage. Service animals accompanying passengers with disabilities should also be carried free in the cabin, subject to the application of any relevant national or airline regulations. (Emphasis added).

The Agency notes that the United Kingdom has strict quarantine laws which apply to service animals. In order to comply with these strict quarantine laws, British Airways has developed a policy reflected in its procedural manual to ensure that on all international flights to/from United Kingdom (with the exception of flights within the United Kingdom (including Jersey); on German internal services; and on flights between the United Kingdom and the Republic or Ireland), service animals are carried in the hold of the aircraft.

The Agency notes that, although the trip Mr. Harders booked was a Canadian-United States portion of a United Kingdom-United States of America flight, British Airways based its decision not to accept Mr. Harders' guide dog in the aircraft passenger cabin on the quarantine laws in the United Kingdom. The Agency has reviewed British Airways' procedural manual, chapter 66, Baggage, on the carriage of guide dogs and notes that it provides no exception for service animals to travel in the passenger cabin between Canada and United States of America. The Agency notes, however, that British Airways made the necessary arrangements for Mr. Harders to travel with Canadi*n without any additional cost and to be accompanied by his guide dog in the passenger cabin.

While recognizing that the transportation of service animals is subject to strict quarantine law in the United Kingdom and that under the existing legislation guide dogs are not permitted to travel in the passenger cabin when the final destination is in the United Kingdom, the Agency finds that since the final destination of the passenger was not the United Kingdom, the quarantine regulations as referred to by British Airways did not apply.

The Agency finds that the refusal by British Airways to carry Mr. Harders' guide dog between Toronto and New York City constituted an obstacle to his mobility. Mr. Harders had to change flights and could not travel to the same airport. The obstacle is undue in that it could have been easily avoided had British Airways' procedural manual accurately reflected that guide dogs are also accepted in the passenger cabin on flights between points in Canada and points in the United States of America given that the United Kingdom quarantine laws do not apply.

Although British Airways no longer operates a flight between Toronto and New York or any other flights involving a United States destination, the Agency notes that, under Licence No. 975114, and in accordance with the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Canada concerning Air Services signed on June 22, 1988, British Airways is authorized to operate to several points in the United States of America en route to or from Canada.

The Agency finds that, to prevent the recurrence of similar situations in the future, it would be appropriate for British Airways to amend its procedural manual to clearly reflect that, when travelling between points in Canada and points in the United States of America, for example, between Toronto and New York, guide dogs are accepted in the passenger cabin.

The Agency has reviewed the provisions of British Airways' International Passenger Rules and Fares Tariff NTA (A) No. 306 on file with the Agency, which is applicable between points in Canada and points in the United States of America.

Rule 115 (E) provides, in part, the following:

A Dog Trained to Lead the Blind will be carried free of charge in addition to the normal free baggage allowance provided that such a dog accompanies a passenger with impaired vision dependent upon it, and is properly harnessed and muzzled, and does not occupy a seat.

However, such dogs will not be carried unless proper permits are obtained for entry into the country or territory of destination and countries or territories of transit where such permits are required and only if the evidence of possession of such permits are presented prior to reservation being made. If any country or territory on the route prohibits the entry of dogs, carriage will be refused. (Emphasis added).

The Agency is also concerned with British Airways' policy of requiring the muzzling of guide dogs on its international flights. The Agency notes that guide dogs used by persons with vision impairments wear harnesses that enhance their ability to guide the visually impaired person. Furthermore, the Agency is aware that guide dogs are trained to behave properly in public and are not used to being muzzled. The Agency finds that, since this requirement may interfere with the ability of the guide dog to perform the required level of assistance, it would be appropriate for British Airways to remove this requirement from its tariff provisions.

With respect to the request made by Mr. Harders to be reimbursed for the cost of his tickets, the Agency notes that the only expenses which may be reimbursed under subsection 172(3) of the CTA are those incurred by a person with a disability arising out of an undue obstacle. The Agency finds that, in this instance, the cost of the tickets was not an expense incurred by Mr. Harders as a result of an undue obstacle.

CONCLUSION

Based on the above findings, the Agency requires British Airways to take the following measures, within (30) days from the date of this Decision:

to amend its policy on the acceptance of guide dogs as set out in its procedural manual, chapter 66, Baggage, to clearly reflect that, when travelling between Canada and United States of America, guide dogs are accepted to travel with the person in the passenger cabin.

to remove from its International Passengers Rules and Fare Tariff NTA (A) No. 306, the provision requiring guide dogs to be muzzled on its international flights between points in Canada and points in the United States of America, and to file a copy with the Agency;

Following its review of the required material, the Agency will determine whether further action is required with respect to this matter.